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Alan Gura in Harvard Law Review

The Second Amendment as a Normal Right. It is rightfully harsh on how some federal circuit courts have treated the Second Amendment. Here’s an expert:

Suppose a state were to prohibit abortion at 20 weeks of gestation absent a doctor’s certificate of “medical emergency,” invoking “documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.”30 In a world where Kachalsky-style “scrutiny” applied to the abortion right, it simply wouldn’t be the courts’ job to second-guess a legislature’s regulatory oversight of the medical profession in the important interests of patient safety and prevention of cruelty. Yet when Arizona enacted just this law, the Ninth Circuit wasted no time striking it down:

Allowing a physician to decide if abortion is medically necessary is not the same as allowing a woman to decide whether to carry her own pregnancy to term. Moreover, regulations involve limitations as to the mode and manner of abortion, not preclusion of the choice to terminate a pregnancy altogether.31

The court properly made quick work of the theory that a fundamental right is not infringed when everyone is free to exercise it upon proving need.32 “The presence of a medical exception does not make an otherwise impermissible prohibition constitutional. The adequacy of the medical exception has no bearing on whether the prohibition is permissible in the first place.”33 Regardless of what the legislature may earnestly believe to be required in the interests of health and safety, the Supreme Court has guaranteed a woman’s right to terminate pregnancy until viability.34 “The twenty-week law is unconstitutional because it bans abortion at a pre-viability stage of pregnancy; no health exception, no matter how broad, could save it.”35

Heller and McDonald leave no doubt that the Second Amendment must operate similarly, as a normal constitutional right…

Read the whole thing. The courts seem to know how to treat rights when a case involves a right that judges favor.

2 Responses to “Alan Gura in Harvard Law Review”

  1. HappyWarrior6 says:

    There is no comparison to something that is not a constitutionally enumerated right as the RKBA is. Poor comparison, and toxic in terms of his choice of issue, unless we are to also trust SCOTUS to override the USC in all matters necessary and proper.

  2. Pete says:

    Kozinski’s dissent in Lockyer:

    “Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States, 389 U.S. 347 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases —or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

    It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.”

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